On January 8, petitioner PDR Network LLC filed its opening brief in the Telephone Consumer Protection Act case before the Supreme Court that could potentially knock out TCPA litigation as we know it. As we explained here, the Supreme Court’s decision to grant certiorari in PDR Network LLC, et al. v. Carlton & Harris Chiropractic means that the Court could decide whether the Federal Communications Commission or the courts will dominate the interpretation of one of the most litigated statutes in America.

Essentially, this case is about whether the Hobbs Act (which requires the courts to defer to the FCC) or the Chevron doctrine (which gives courts freer rein to interpret agency decisions) prevails.

PDR Network’s brief didn’t pull any punches. Criticizing the Fourth Circuit Court of Appeals’ decision to strip jurisdiction from district courts in favor of FCC rulemaking, PDR Network averred that the Fourth Circuit “treated the Hobbs Act as though it gives agencies, rather than courts, the final word as to what federal law means” and that “[t]he Fourth Circuit was wrong to ascribe such revolutionary meaning to a statute as ordinary as the Hobbs Act.” In so arguing, PDR Network urged the Court to find that the “[t]he Fourth Circuit misconstrued the Hobbs Act” which it concluded did not have such an effect.

Relying on the text of the Hobbs Act and the Administrative Procedure Act, PDR Network forcefully argued that there is no limitation on the power of district courts to fully consider a party’s defenses, such as FCC interpretations of TCPA provisions. Instead, PDR Network argued, “the Hobbs Act has a limited and sensible reach. … There is thus no reason to read the Act to give the courts of appeals a monopoly over all judicial review of agency orders[.]”

However, PDR Network did not limit their argument to the Hobbs Act. It argued that, if accepted, the Fourth Circuit’s interpretation of the Hobbs Act would raise “grave constitutional concerns” as so doing would bar PDR Network from “litigating a statutory defense that it never had a full and fair opportunity to present to any court, on the theory that an agency has put the issue to rest without any judicial determination whatsoever.” In other words, PDR Network argues that the Fourth Circuit’s holding prevents corporations such as PDR Network from defending themselves with the full range of defenses constitutionally available.

After raising the constitutional stakes, PDR Network offers the Supreme Court an alternative solution: review the FCC’s 2006 Order as an interpretive rule rather than a binding legislative rule. In urging this approach, PDR Network reminded the Court that “interpretive rules do not bind courts or private parties, and frequently are not even reviewable by a court until applied by an agency to a particular party.” Accordingly, then, the District Court was correct to conclude that the complaint did not plausibly allege a violation of the TCPA as it was not bound by the Hobbs Act to “slavishly” follow the FCC.

These arguments confirm that the TCPA interpretation battle between the FCC and the courts could well be decided by the Supreme Court through this case.